12/09/2025
Who Owns the Past? The Legal Grey Zone of Pre-1969 Australian TV
Article by James Paterson, Australian Television Archive
When Australian television first went to air in 1956, no one imagined the legal grey zones that would emerge decades later. Early broadcasts were transmitted live, often never recorded, and the law at the time offered no copyright protection for the signal itself. A kinescope or videotape might have been made for station records, but even those carried only limited terms of protection that in most cases have long since expired.
Today, when fragments of that era resurface, they often appear in a cloud of confusion. A major television network may assert ownership, or a government-owned archive may be credited as the custodian. Yet under the law, most pre-1969 material is firmly in the public domain. The real question is not one of copyright, but of provenance: who saved it, who digitised it, and who made it possible to see again?
This is the grey zone of early Australian TV — legally unowned, but culturally contested.
The Law Before 1969
For more than a decade after television began, the broadcast signal itself carried no copyright protection. It wasn’t until the Copyright Act 1968 (Cth) came into force on 1 May 1969 that broadcasts gained legal recognition. This means that a program broadcast in 1959 was never covered by copyright.
What did exist were kinescope films — 16mm reels shot directly off a monitor, kept for internal records or occasional rebroadcasts. These were treated as “cinematograph films” and did attract copyright protection, originally lasting 50 years from the end of the year of creation.
In 2005, following the U.S.–Australia Free Trade Agreement, the term for films and sound recordings was extended to 70 years. Broadcasts, however, remained at 50 years. The extension was not retroactive: works that had already fallen into the public domain stayed there. A kinescope made in 1959 therefore sits in one of two categories:
If it was considered “published,” its copyright runs until the end of 2029. If it was never published (kept only as an internal record), its 50-year term expired by the end of 2009.
The same applies to any videotape recordings made before 1969. Magnetic recordings were not clearly protected until the Copyright Act commenced, leaving them in an even murkier position than kinescopes. In practice, almost all film and tape from this period is now firmly in the public domain.
The Broadcast–Recording Paradox
After 1969, television broadcasts gained copyright protection for the first time — but only for 50 years. Those terms are now expiring. The copyright in a 1971 or 1972 broadcast, for example, has already lapsed. On paper, those signals are now in the public domain.
But the recordings of those broadcasts — the kinescopes and videotapes that are the only reason we can still see them today — are treated as entirely separate works. Since 2005, recordings enjoy a 70-year term, which means a 1971 tape is protected until 2041 and a 1972 tape until 2042.
The result is a strange contradiction. The law says the broadcast is free, but the broadcast itself is gone. What survives is the recording, and that is still locked up for decades. In practice, copyright in recordings extends far beyond the copyright in the broadcasts they captured.
“Australian law treats a broadcast and a recording of that broadcast as two distinct works, even though in practice one cannot survive without the other.”
The Preservation Paradox
And yet, when such material surfaces today, it is rarely presented that way. Corporations and institutions often assert ownership as though copyright still applied. Modern enforcement systems — YouTube’s DMCA process among them — reinforce this binary view: either you have copyright, or you don’t. There is no mechanism to explain provenance, expired rights, or public domain status.
This creates a paradox for independent archives. When a long-lost kinescope or tape is digitised and made public, it preserves cultural memory. Without that work, the material would not exist to be debated. Yet the system recognises none of that effort. The archive that kept the flame alive is often written out of the story, while credit and authority are reassigned to larger institutions.
Why Attribution Matters
It may seem academic who gets the credit, so long as the material is accessible. But attribution is not about pride — it shapes relationships, trust, and sustainability. When misattribution occurs, goodwill is eroded. For an independent archive, that can mean lost licensing opportunities, strained relationships with broadcasters, and the need to recover costs elsewhere.
The larger cultural question is this: do we want a heritage ecosystem where those who saved the past are acknowledged, or one where institutional narratives overwrite the real story of survival?
Looking Forward
Who owns the past? In the case of pre-1969 television, the law is clear: no one does. These works are public domain, except for a handful of kinescopes that may remain in copyright until 2029. But who preserves the past — who rescues it from oblivion, cleans it, digitises it, and shares it — that is where the real ownership of responsibility lies.
Until systems evolve to recognise nuance, the legal grey zone of early television will continue to collide with the realities of preservation. And each time it does, we are reminded of a simple truth: saving history does not mean the system will let you protect it. But without saving it, there would be nothing left to fight over.
